When We Copy, We Justify It; When Others Copy, We Vilify Them

from the everything-is-a-remix dept

We've written multiple times about Kirby Ferguson's excellent Everything is a Remix project that has produced three videos highlighting the problems and history of intellectual property and how copying and derivative works are a core element of culture and invention. He's now released the fourth and final installment in the series, and it's a great summary look at the general problems with intellectual property law today.

The key theme is that the theory (treating ideas, inventions, content, etc. as a form of "property" -- in the minds of many copyright and patent system supporters) simply doesn't match up with reality (where almost everything is a derivative work of some sort). What the video does nicely is highlight the hypocrisy of it all. As he notes brilliantly, when we copy (and everyone does copy), we justify it. When others copy, however, suddenly we attack them and vilify them. A perfect recent example of this, by the way, was former NYT executive editor Bill Keller's bizarre defense of the NYT copying and posting a work covered by someone else's copyright, just days after his own column came out in support of greater legal enforcement of copyrights.

As he notes, this is psychologically understandable. It's all about "loss aversion." People feel a sense that they "own" something which they really do not -- and that's often boosted by the concepts of intellectual property that really spread the idea that you can, in fact, own an idea (and, yes, technically neither copyright nor patents apply directly to "ideas," but that's a nuance that most people fail to grasp when they see how content and inventions are considered "owned" under the laws of today).

The video then talks about the continued expansion of copyright laws, and the more nefarious effort to continue to ratchet things up through trade agreements like ACTA and TPP. But he also points out that this is somewhat ironic, since in its early years, the US refused to sign similar trade agreements, and was a "pirate nation" that ignored copyrights from around the globe.

The video doesn't just cover copyrights, but digs into patents as well -- with specific attention paid to broad software patents that do little to contribute any knowledge to the world, but instead take broad concepts and seek to lock them up for the purpose of suing and trying to extract settlements from those actually creating and innovating.

From there he breaks out the original purpose of both copyrights and patents under the US system. In both cases, they were about benefiting the public: to encourage learning or to promote the progress of "useful" arts (inventions). But when the laws fail to do that, then we should see the system as broken and seek to remedy it.

All in all, Ferguson's series is a great introduction to many of the issues we cover around here. I don't fully agree with everything in all of the videos -- and the latest one has a slight undertone suggesting that capitalism and markets in and of themselves are bad (which I think is conflating a few different issues). But overall the videos are fantastic -- and in terms of production quality, it seems like each one in the series is better than the previous one. He keeps maturing as a video maker, which is cool to see. Ferguson is now moving on to a new project, called This is Not a Conspiracy Theory, for which he's raising funds on Kickstarter, so check it out.

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Culture does not exist in a vacuum. How about those dirty pirate rock 'n rollers who are still pirating power chords without paying up licensing fees? Or those damned poets who pirate the rhyming schemes? And don't even get me started on those software engineers who blatantly pirate the core concepts of computing like the UI or rounded icons without paying Xerox and Apple, respectively.

Tell me again that this is not creative? Sure, it is highly derivative, but there was an awful lot of creativity into making it (for free, I might add) and I for one found it to be an awesome addition to the universe.

Kellar

"There was, in the comment thread, a lot of passionate and thoughtful discussion – much of it hostile to the idea of protecting the right of content-makers to be paid for their work"

I read about 50 of the 117 comments, and saw nothing "hostile to the idea of protecting the right of content-makers to be paid for their work". How can he expect to have a real conversation when he refuses to hear what others are saying?

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copying disconnect

Copying (like privacy) seems to be an asynchronous concept. Any given person or entity changes their views of acceptable conduct from moment to moment depending on whether they are cpying, or being copied.

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It bears repeating, even though it is largely lost on those who villify anything to do with patents and copyrights. No matter which of these bodies of law apply to any given situation, "ideas" are not and never have been protectable under federal law. Any statement to the contrary is plainly wrong and without any merit whatsoever.

Saying that our country was founded as a "pirate nation" is wrong at so many levels I have to wonder if the basic concept of the sovereignty of nations and their laws is even understood.

I will admit it is a very well done video. I cannot, however, say the same for most of its content regarding patent and copyright law.

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In 2009, Casey Pugh asked thousands of Internet users to remake "Star Wars: A New Hope" into a fan film, 15 seconds at a time. Contributors were allowed to recreate scenes from Star Wars however they wanted. Within just a few months SWU grew into a wild success. The creativity that poured into the project was unimaginable.

I think it's clear that we'd all be worse off as a culture if asinine absolutes like 'taking a copy of the star wars film and putting different voices on it' were the limit of the subtleties of our copyright system.

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Except the modern usage of the moniker 'pirate nation' IS a nation that thinks their sovereignty supersedes the copyrights and patents established in nations with more global political clout. Using the modern definition the early US would absolutely have qualified.

we all need to watch more tv

my son was watching tv, a show called Franklin. The episode covered copycats. The main character, Franklin, dazzles his friends with his ability to draw some clouds. Franklin gets upset when one of his friends copies his method of drawing clouds. At then end of the episode it is revealed that Franklin learned his method of drawing clouds from a comic book.

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No matter which of these bodies of law apply to any given situation, "ideas" are not and never have been protectable under federal law. Any statement to the contrary is plainly wrong and without any merit whatsoever.

The problem is that the idea/expression dichotomy is not and has never been clear. It is highly subjective and comes down to the whims of the judge. There is no simple definition to separate an idea from an expression - like the Star Wars example used above: space emperors and starships? That's an idea. Exact characters and storyline? That's an expression. But what about all the stuff in between? What about a brand new story set in the same universe? Or one that had very close analogues to all the characters, but with different names set elsewhere? What about a new version of the same story written from an entirely different perspective with all new details? What about an unauthorized sequel that only references the original?

It's not easy to say where the line between idea and expression falls. Moreover, as Mike pointed out, this nuance is lost on a lot of people: the common wisdom seems to be that you can own ideas, as evidenced by the all-too-common refrain "They stole my idea!"

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You are right. Culture doesn't exist in a vacuum. But it doesn't grant you the rights to use other people's work product directly without consideration.

The issue I have is that those who seek to pirate by remixing are trying to ride on the coat tales of the more innocuous "inspired by" concept. I can be inspired by Star Wars to write a book about space, but it doesn't give me a right to just copy their product outright, doing cut and paste from their scripts. That is the difference.

There is a huge difference, but these guys are trying hard to disguise it.

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What about an unauthorized sequel that only references the original?

Indeed, the unauthorized sequel to Catcher in the Rye was found to be an infringing derivative work. In fact, it seems to me the whole doctrine of derivative works (not contained anywhere in statute IIRC) pretty much destroys the idea/expression dichotomy.

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This seems appropriate

"Picasso had a saying: 'Good artists copy, great artists steal.' We have always been shameless about stealing great ideas...I think part of what made the Macintosh great was that the people working on it were musicians, poets, artists, zoologists and historians who also happened to be the best computer scientists in the world."

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Are you really not prepared to acknowledge that the idea/expression dichotomy is muddy at best? It's a complex and difficult line to draw, with several different competing tests and standards for the courts to consider. That's not exactly a fringe opinion - it's acknowledged by people from both sides of the debate.

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In the vast majority of situations associated with copyright law the idea/expression dichotomy is not at all difficult to conceptualize and apply. However, there will always be, as is the case with any law, areas where the line between OK and Not-OK is blurry.

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In the vast majority of situations associated with copyright law the idea/expression dichotomy is not at all difficult to conceptualize and apply

Maybe (though I'm not so sure about that) - but in every situation involving a question of derivative/transformative works and fair use, the idea/expression dichotomy is unclear, subjective and difficult to apply. Considering fair use is supposed to be a vital release valve on copyright to prevent it from being unconstitutional, I'd say that's a pretty big problem that needs to be addressed.

The real problem

The problem isn't that we rationalize our own copying and vilify others. After all, Mr. Masnick himself has said that such vilification, as long as it doesn't go too far, constitutes a societal pressure (see: the recent news about Zynga copying others who copied yet others), and that's OK. The problem is when the vilification is extended to old grandmothers and young children to the tune of ridiculously costly lawsuits and threats of a lot of time in jail.

Re: The real problem

I agree that societal pressure is an excellent solution for a lot of problems - but I don't think you're quite addressing the issue. What we don't want is societal pressure directed at the simple act of copying. For example, with Zynga: I have no problem with them copying games, and the reason that response from the next developer was good was that it was slightly snarky as a way of acting for some credit, but overall not particular vicious. Even still, it wasn't great - the smaller developer than them with their followup comment were the ones who had it right: they basically said quit worrying about copying, because we all copy each other. That's the attitude everyone should have - and I think that the social pressure on Zynga should be focused on their hypocrisy, because they flagrantly copy then go after people who copy them (same as Disney, though not as extreme, since DIsney loves to burglarize the public domain). But the goal is not to have everyone stop copying - it's to have everyone stop complaining when they get copied.

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Ah, yes. You are certainly correct that the real issue is when someone who makes a big deal about attribution (and, later, copyright) conveniently forgets to attribute and then attempts to rationalize that. I was certainly in error by leaving that out.

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Star Wars was hardly original with any of that content, overall story line and plot. So outside of special effects George Lucas must have pirated the entire story by your illogical thinking.

He remixed some of the best and worst of 1950s Sci-Fi movies (including gooofy robots), some of the best and worst of 1920s and 30s Sci-Fi short stories and novels and, most notably, for the emperor, borrowed freely from Issac Asimov's character The Mule from the Foundation Trilogy.

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By using the term remix no one is suggesting copying the Star Wars story outright or cutting and pasting, As I note elsewhere Lucas borrowed from and remixed from a number of sources to come up with Star Wars. Far more than I noted there.

And, again, cut and paste isn't being suggested here. Which is why you have to look so hard to find it.

The Slave Traders of Our Ideas

Intellectual property owners are the slave traders and slave owners of our civilization. Those slave traders also fulfilled a valuable service to our economies. They supplied us cheap and abundant workforce for our fields, our farms, and to build our railway lines. They certainly deserved to earn a good living for their invaluable service. Who else would have costed their ride to all those African and Chinese people offering them the chance to help create a new world?
Thanks to them, the production costs of raw matter dropped, what in turn fueled the manufacturing and trade of derivative goods. The benefits of their trade allowed the capital required to create new ventures and to pay for the productive means required to boost our industrial revolution.
Didn't they deserve the right to own their slaves and get a profit for their work in exchange for their immense service to humankind?

I'm also in favor of humane slavery.

Kirby Ferguson is just another humane slaver,

##Thanks, I'll check him out. Indeed, the truth usually is that free market champions just want the most favorable rules. "Free" is not the point.##

##Hi Marc.
I think you're referring to piracy, not remixing. I'm in favor of streamlined copyright, along the lines of its inception. I feel the video communicates this view.
Thanks for the kind words!
_k##